Ninth Circuit Appellants Petition for Rehearing En Banc, B06-56200
Appellants Petition For Panel Rehearing And Rehearing En Banc
I. INTRODUCTION AND STATEMENT OF APPELLANTS
Christopher A. Brown, Kathleen Ousey, Linda Ruiz and M.C, appellants in Brown, Ousey, Ruiz v. County of Santa Barbara, No 06-56200 seek rehearing en banc of the October 5, 2007 panel decision (Canby, Tashima, Rawlinson) concerning issues of Mental Health care which have National significance. Aspects of due process relative to the appeal also effect administration of justice in the Ninth Circuit. (1)The panel held that appellants for lack of standing or that there was no actual or immanent or actual injury. (2)Claims were dismissed against defendant Stark on issues of preclusion, (3)Claims were dismissed against Montes de Oca, Egar because plaintiff did not allege they acted under color of state law. (4) Claims were dismissed against Sneddon and Mclaughlin on ground of immunity. (5)Claims were dismissed against the County of Santa Barbara with recognition of non viable liability of Respondeat Superior theory. (6)Claims were dismissed against Commissioner Sterne under judicial immunity
There is a matter having a major impact on the administration of justice in the Circuit which has been discovered since the appellants last filing. The matter can effect all citizens of the United States, for more than one reason. It is a due process matter which brought this case before the Ninth Circuit when it should not be. The plaintiffs case should not have been assigned to the magistrate and judge who's decision this appeal seeks reversal of.
Appellants, Christopher A. Brown, Kathleen Ousey, Linda Ruiz and M.C have discovered that the United States District Court for the Central District of California had changed its rules of court and has not noted the change in the new rules.
The local court rules which were in place prior to July of 2005 were in a section of the rules which no longer exists. The change is not noted in the local rules for that court. This is a due process violation and effects the administration of justice in the Ninth Circuit for all of Central District of California and beyond within the circuit. The section removed was titled "Assignment of Magistrates and Judges" and stated that when a pro se civil rights case was filed and dismissed and re-filed by the same pro se plaintiff, that the case was reassigned to the same magistrate and judge to prevent a duplication of efforts. Directly following that, the rules stated that when the same case was re-filed with new co plaintiffs that a new magistrate and judge were assigned.
Appellants were assigned to the same judge and magistrate following the deprival of proper notification of the change in the District Courts Rules. The general public is also deprived of notice of this wide reaching change in the local rules.
Appellants seek rehearing because the Panels Opinion overlooks the fact that the appellants are not filing a monetary damage claim or an injury tort claim based on rights violations. The appellants have filed suit to gain "specific performance" and "injunctive relief". Apparently the Panel mistakenly recognized the defendants/appellees defenses to a claim, ....... the appellants did not make.
II. PETITION FOR REHEARING EN BANC
Appellants/plaintiffs, Christopher A. Brown, Kathleen Ousey, Linda Ruiz and Margaret Cousins filed their suit with the United States District Court for the Central District of California because it was understood that by doing so with new co plaintiffs a new magistrate and judge could be obtained and plaintiffs understood that plaintiff Appellant/plaintiff, Christopher A. Brown had not been provided justice and that their family members lives were in jeopardy. Since that time Appellant Linda Ruiz's daughter in law Denise Tacadena was found dead and decomposing on October 14, 2006 from alcohol poisoning. She has 2 sons and a daughter that are currently very much at risk. Two granddaughter's, one of which is a step daughter of plaintiff Kathleen Ousey are also at risk.
Nationally it has been made clear by events of April 16, 2007 in Blacksburg, Virginia at Virginia Tech College where 32 students were killed by a mentally ill student who killed himself, that there is a mental health crises with symptoms ranging from alcoholism and drug addiction to deadly psychosis. October 10, 2007 had a killing of 5 in Cleveland, 7 more were killed on October 7, in Crandon Wisconsin. The public has great need of effective mental health care immediately, if not years ago when appellant Brown first sought records from Santa Barbara County through legal subpoena.
The appellants have cited in their Optional Reply Brief, filed November 30, 2006 10 deaths of friends or family related to appellants and 12 deaths of mass murder, by persons in Santa Barbara County since appellant Brown began seeking compliance with California state laws by Santa Barbara County by the development and administration of the experimental treatment which was given defacto approval by the Santa Barbara County Mental Health Departments "carrying forward" the request to the California State Department of Mental Health in EXHIBIT THREE as attached. The murderers had been treated at Santa Barbara Mental Health Department and the treatments obviously failed.
The Panel has jurisdiction pursuant to 28 U.S.C. § 1291 and is also an Article III court with Power extending to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, between Citizens of the same State and between a State, or the Citizens thereof. All judges presented with this Petition For Rehearing are of the same court and obligation.
The Panel cites Cholla Ready Mix, Inc. v. Civish 382 F.3d 969, 973 (9th Cir. 2004) where the Arizona federal district court dismissed Cholla's lawsuit against Arizona defendants when Cholla asserted that denying him the ability to use his private property because it was sacred to certain religions constitutes the establishment of religion in violation of the Constitution, bears no relation to appellants assertions that plaintiff Browns rights were violated and that the violations impaired the development of the experimental treatment at issue. Brown had presented the treatment to the Santa Barbara County Mental Health and found them complying with California State Health and Safety Code 1370.4 whereupon their superiors stopped the compliance by not allowing vital information to Brown first by subpoena in one form and then through his use of the Freedom of Information Act. Since appellants are of the same state as the state or municipality they prosecute,
Portion of the United States Constitution Eleventh Amendment:
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
the U.S. Constitution: Eleventh Amendment, cannot apply as justification for dismissal.
The Panel cites Covington v. Jefferson County 358 F.3d 626, 637-38 (9th Cir. 2004) to justify affirmation of dismissal for lack of standing of co plaintiffs. Clearly, the Covingtons did not have standing to bring the Clean Air Act claim but did show breach of RCRA by the County or the Health Department, but whether Appellees' actions have caused "reasonable concern" of injury to the Covingtons is questionable wherein the instant case, plaintiffs Ruiz, Ousey and Cousins have suffered significantly and this happened not only before filing but since filing. Prior to filing, all the co plaintiffs families suffered from lack of appropriate treatment for alcoholism and drug addiction in Santa Barbara county, since filing co plaintiffs have suffered deaths in their families, drug overdoses and hospitalizations from them and or alcohol poisoning.
Article III of the Constitution requires that a plaintiff have standing before a case may be adjudicated. This constitutional requirement ensures that litigants have an incentive to develop their case so that a court can correctly address the issues presented. To satisfy Article III a plaintiff must show (1) " 'an injury in fact' that is (a) concrete and particularized and (b) actual or imminent . ..; (2) [that] the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative. Injunctive relief can prevent future injustices or injury to plaintiffs while inherent standing is possessed by plaintiffs as demands for specific performance compelling simply ask for the defendant County to follow existing state laws.
Appellants families and friends suffer to extreme degrees, injury in fact, with rights violations, pursuant to Wilson v. Garcia, 471 U.S. 261, 268, 85 L. Ed. 2d 254, 105 S. Ct. 1938. Numerous exhibits of the case evidence concrete, particular psychological and economic injury which is fully traceable to the defendants retaliatory actions of the family law court serving the Counties evasion of laws by unjustly damaging Brown and abusive violations of Federal law as well failures to abide by state laws. Damage to Brown equals a deprival of the co plaintiffs of the main protagonist, or the final fundamental deprival of a treatment which can protect their families and friends from extreme behaviors of many types.
The Panel cites Reyn's Pasta Bella, LLC V.Visa USA INC., 442 F.3d 741, 746 (9th Cir. 2006) to justify affirmation of the district courts dismissal of claims against defendant Stark based on preclusion. In that cited case, allegations of price fixing by defendants were made. The decision by the Ninth Circuit was based on an earlier case Wal Mart Stores, INC v. Visa USA. where, apparently, price fixing claims against Visa were dismissed. The instant case has proven allegations by new plaintiffs against defendant Stark of interfering with the appearance of a witness and courts have a duty to uphold a higher standard of legal performance by governmental entities and their employees acting under their authority. All plaintiffs have suffered by defendant Stark's interference with the appearance of witness and deprival of evidence or records useful in establishing the veracity of the proposed experimental treatment.
The Panel cites Kirtley v. Rainey, 326 F.3d 1088. 1093 (9th Cir. 2003) as preceding the panels affirmation of a proper dismissal while all defendants were identified; as employees of Santa Barbara a duly constituted governmental entity operating in the state of California under state law; in plaintiffs First Amended Complaint. Certainly an oversight by the panels review of the record. Such a cite must be a mistake also because Raineys attorney was a private attorney, definitely not acting under state law while defendants de Oca and Eager definitely were doing so.
The Panels opinion is that the district court properly dismissed plaintiffs claims against defendants Sneddon and Mclaughin on grounds of prosecutorial immunity, citing Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001) which held that prosecutors are entitled to absolute immunity from a civil suit for damages. The panel perhaps assumed appellants suit is for damages, it is not, it is for injunctive relief in order to prevent further damages and enable specific performance as demanded. Plaintiff suits is not a money claim and evidenced, proven damage to plaintiffs is presented only to justify injunctive relief and specific performance.
The Panel accepts that the district court properly dismissed the plaintiffs claims against the county citing that a municipality cannot be held liable under section 1983 on respondeat superior theory, such logic would apply however, when plaintiffs had demonstrated a prolonged custom of rights deprival's against appellant Brown by the County beginning in 1998, respondeat superior will hold. Additionally,
The Panel asserts that the district court properly dismissed the plaintiffs claims against commissioner Sterne on the basis of judicial immunity and cites Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) to justify affirming the lower courts dismissal. Examination of the citation shows that once again the Panel is mistakenly reviewing the plaintiffs claims as if they were monetary damage claims, they are not. The plaintiffs claims state damages but only use them to justify injunctive relief and specific performance. Granting immunity under these conditions would essentially be adjudicating that the commissioner did not have a duty to recognize a citizens rights in the past and would have no duty to do so in the future. It would be so because there is no liability claim for damages against the commissioner only a motion for injunctive relief to prevent the commissioner from further harming the plaintiffs by depriving plaintiff Brown of his equal protection of law and right to present evidence in his defense. To date this is what the commissioner has done. Within the last few months the commissioner has refused to accept the diagnosis of 2 medical doctors concerning Browns physical disability, sciatica and arthritis as well as his increasingly severe mental impairment of Attention Deficit Hyperactivity Disorder.
Pursuant to Wilson v. Garcia, rights deprivations are personal injuries. Personal injuries are documented by doctors diagnosis and the commissioners court has those records but refuses to use them. The court even refuses to acknowledge they are in the file. Brown has presented numerous rights deprivations to the commissioner in a motion to quash contempt charges. Rights deprivations are personal injuries causing stress or psychological damages that impair his performance and ability to remember or focus on daily duties or tasks and they are not considered by the commissioner. The commissioner adjudicates in a case against Brown for contempt while also a defendant in the instant case. Such an ongoing conflict of interest indicates the vital need for injunctive relief.
The combined factors of the district courts change of rules without notice considered with the resulting impacts on the administration of justice in the circuit as well as widespread public interest in effective medical treatments, taken with the mistaken interpretation of the appellants pleadings as damage claims by the district court then the panel; or the defendants lack of immunity from injunctive relief and specific performance demands; compel appellants to seek rehearing and if it is denied, they urge rehearing en banc.
For the foregoing reasons, the appellants respectfully request rehearing of the issues identified above, and/or rehearing en banc, as appropriate for reasons set out in the statement of counsel above.
Date; ____________________ ____________________________________
pro se Appellant, Christopher A. Brown,
____________________ ____________________________________ pro se Appellant, Linda Ruiz,
pro se Appellant Kathleen Ousey,
pro se Appellant, M.C,
CASE NO. 06-56200
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